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Ch 24 Dealing with Doctors and Medical Opinions

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Delegates, as part of their claims investigation activities, will rely heavily on medical opinions to establish links between the claimed injury or disease and the member or former members service in the ADF. Sources of that advice will vary from ADF Health Services doctors, a treating GP and/or specialist or an independent specialist. There will also be occasions where information is sought from DVA Medical Officers (DMOs).

Which source is used will be dependent upon the claimed condition, if the claimant is still serving, or if there is a treating doctor, either a GP or a specialist. The Liability handbook provides more specific directions on the use of specific medical providers.

However, it is important to consider the role that the DMO can play in MRCC cases.

A Delegate's seeking an opinion from a DVA Medical Officer is quite a useful way in which liability issues can sometimes be made clearer for the Delegate. This is especially true in cases of diseases in which there may be legitimate questions about the likelihood of a material contribution to a disease by a claimant's service in the ADF. However, it is not appropriate for Delegates to make decisions which are unfavourable to a claimant on the basis of a DVA MO opinion without at least giving the claimant an opportunity to provide evidence to support his or her claim or to refute the evidence available to the MRCC. Further information is available on this issue in the Initial Liability handbook, particularly when the issue of revoking liability is considered.

The following scenario illustrates the manner in which a DVA MO's opinion might be obtained and used in a SRC Act compensation case:

A claim for compensation in relation to a disease is received without any medical evidence to establish a link between the disease and the member's duties in the ADF. In such a situation, a Delegate might reasonably discuss the case with a DVA MO to try to establish a basic understanding of the disease and its possible or probable connection to the member's service. In some cases, the Delegate may consider it appropriate to refer the compensation claim file to the DVA MO for an opinion about the possible or probable connection to service.

If the DVA MO were to provide an opinion that indicated that any such a connection was unlikely, it would not be appropriate for the Delegate to act on that advice and 'disallow' the claim. Rather, the next step would be to write to the employee or claimant, referring to the opinion of the DVA MO and explaining that the MO's opinion was sought in the absence of any other medical evidence to establish the likelihood of a connection between the claimed disease and the member's service in the ADF.

The employee or claimant would then be advised that, on the basis of the MO's opinion, it is unlikely that liability could be determined in the employee's or claimant's favour. The employee or claimant would then be given an opportunity to provide further evidence to support the claim before a final decision is made. A period of 28 days is usually allowed in such circumstances, but in the case of initial liability a longer period could be allowed if the employee or his/her representative requested further time to provide such evidence. This is on the basis that there is no financial cost to the Commonwealth by delaying determination of the claim.

In a similar scenario to that described above, if a DVA MO's opinion was that there was a probable connection between a claimed disease and the employee's service in the ADF, the Delegate may in such circumstances consider it reasonable and appropriate to find liability to pay compensation under the SRC Act.

The bottom line in such cases is that while a DVA MO's opinion might in some cases be useful in resolving a matter of liability in the employee's or claimant's favour, such an opinion should never be used in isolation as a basis either for disallowing a claim for compensation under the SRC Act, or for ceasing liability to pay compensation under that Act.

If favourable evidence is subsequently received from the employee or claimant, it will then be a matter for the Delegate to decide whether liability or continuing liability has been established as a probability.

Although the above refers to DVA MO's, it is equally applicable to opinions which might in some cases be received from doctors who work with ADF Health Services.